By: Danielle Edrich
Earlier this summer, I had the opportunity to sit down with Professor Lisa Young, an Australian family law professor, and talk about some of the differences in family law between the United States and Australia. Young has focused her career in family law as a practitioner, professor, and researcher for more than 20 years, and is currently Dean of Research as well as an Associate Professor at Murdoch University School of Law in Western Australia. She is also the current editor of the Australian Journal of Family Law, Australia’s premier family law journal, and is co-author of Family Law in Australia, one of Australia’s principal family law treatises. Young also has been working with the Commonwealth’s Child Support Agency for 16 years, where she routinely hears and decides cases. Before getting into academia, Young was a commercial and family law practitioner. She mentioned that although she ultimately ended up in academia, practicing law was a valuable experience that gave her a “real-world” understanding of the law.
As Dean of Research at Murdoch, Young has been speaking with law schools throughout the world to gain an understanding of what programs and ideas their students are interested in pursuing so that she can further develop a thriving program for her students in Australia. She is also interested in looking for connections her school can build with other law schools. Furthermore, as Young is a family law scholar, she was very interested in learning about family law in the United States and how it compared to Australian law. Young mentioned that looking at different law systems is important to fully understand and grasp legal issues. Seeing how each country’s legal system deals with family law matters can be useful while working on or teaching about them in her own country.
Family Law Structure
Australia’s approach to family law is different from American law, especially since family law in the United States in mostly determined on a state-by-state basis. In Australia, though there are separate states and territories, family law is essentially federal in nature, affecting everyone the same throughout the country. In addition, unlike the United States, where there are a vast number of topics and areas that fall into family law, especially with each state defining their own family law matters separately, Australian federal law has a narrower perception of family law matters, which are governed by the Family Law Act of 1975.
Though unlike the United States, in that Australia does not have a separate family law system for each of its states and territories, there is not just one Family Court presiding over all of Australia. The Family Court of Australia, along with the Federal Circuit Court, hears the majority of family law matters throughout the country. The Family Court of Australia is a Superior court that was established under the Family Law Act of 1975, and hears matters in all Australian states and territories except Western Australia, which has its own governing family court. The Family Court of Western Australia is the only state-based family court in Australia and has Superior and lower court functions, though all appeals ultimately end in the federal system.
Divorce, parenting matters, and property disputes are all covered under the Family Law Act, with child support being covered in federal child support legislation. However, child protection/abuse and neglect matters are primarily handled at the state level. Also, unlike in many states in the United States, juvenile justice is treated as a separate matter and cases are heard outside the family courts’ jurisdiction, though each state and territory has its own juvenile justice system in place. In the United States, depending on the state and the circumstances, juveniles can be tried in family or criminal court, and juvenile justice topics are often brought up in family law settings.
Independent Children’s Lawyer
Though there are children’s matters that are brought up in the Australian family court, like parenting disputes, approval for special medical procedures for children and adoption, the child’s presence or opinions may not be major components of the case. Judges are reluctant to hear children directly during trials and proceedings, and the “Independent Children’s Lawyers (ICLs),” acting on behalf of the children do consider the children’s wishes but take an active role in representing what they believe is in the children’s “best interests.” ICLs may act contrary to what the child wants. Of course, the age of the child is a big determinant in how much the ICL advocates for what the child wants and courts must take children’s wishes into account. Professor Young noted, however, that she would like to see a greater voice for children in these proceedings in the future.
De Facto Relationships and Same Sex Marriage
Another central topic currently at issue in Australian family law is determining what a “de facto” relationship is. Unlike in the United States, where same sex marriage is being recognized in more and more states, same-sex couples still cannot legally be married in Australia. However, they can be considered to have a “de facto” relationship, allowing them legal rights almost identical to those of a married couple. A “de facto” relationship is when two people, either of the same or opposite sex, have a “relationship as a couple living together on a genuine domestic basis.” De facto relationships are only for those who are not legally married or related by family. A very difficult question for the Australian family law judges right now is determining what constitutes a de facto relationship.
It should be noted that a de facto relationship is not considered the same as being married, and though many couples may fit into a de facto relationship, many would still seek to marry. De facto status was enhanced under amendments to the Family Law Act in 2009. One might ask, why won’t Australia allow for same-sex marriage? The answer, like in many countries, is political. Lawmakers and judges are not quite ready to act, although same sex marriage has popular support in Australia.
Speaking with Professor Young was a valuable experience as it allowed for a conversation about family law issues that each of our countries are currently facing. Comparative analysis of different legal systems provides perspective on legal issues at home and abroad and can help each individual system evolve and overcome obstacles. Comparing family law systems is especially interesting as family law is very cultural in nature. These comparisons can help students, scholars, and practitioners understand why there are certain laws and whether they should be changed to reflect current societal norms.